2. Agreements

The term «agreement», like the term «treaty» itself, is used in a number of senses. In a generic sense, it covers any meeting of minds — in this case the minds of two or more international persons. A distinction must always be drawn between agreements intended to have an obligatory character (i. e. the assumption of legal rights and duties) and agreements not intended to have such a character. In a restricted sense, the term «agreement» means an agreement intended to have an obligatory character but usually of a less formal nature than a treaty. Like treaties, agreements in this restricted sense may be concluded between Heads of State, between States or between Governments.

No doubt because of its general and relatively innocuous meaning, «agreement» is the term invariably used to describe understandings intended to have an obligatory character concluded a) between the United Nations and the specialized agencies ( including the «relationship agreements» covered by Articles 57 and 63 of the Charter) and (b) between the specialized agencies themselves («inter-agency agreements»).

A term substantially equivalent to «agreement» is «arrangement». The view that an «agreement» implies an undertaking somewhat more definite than an «arrangement» is not believed to be correct. Other terms sometimes used instead of «agreement», though believed to be substantially similar, are:

(a) memorandum of understanding constituting an agreement;

(b) understanding;

(c) agreed joint statement;

(d) memorandum constituting an agreement;

(e) joint declaration constituting an agreement.

Sometimes agreements are concluded between a Government Department in one country and a Government Department in another. It depends on the circumstances whether such «interdepartmental agreements» are binding under international law or whether they are merely private law contracts.

Agreements are frequently concluded by exchange of notes, sometimes referred to as «letters». In such cases, the representative of one government sends the representative of another government a note setting forth the arrangements proposed or to be agreed upon. The reply agrees to and frequently repeats the terms of the first note.

A temporary or working arrangement made in order to bridge over some difficulty pending a permanent settlement is usually referred to as modus vivendi. This type of a temporary arrangement is made in a most informal way and does not require ratification. Commercial agreements of a temporary nature have often been entered into in the form of a modus vivendi by the United States as well as Great Britain.

Most agreements of a binding nature follow the same compositional design, with some variation, as treaties and other international compacts. Generally speaking, diplomats divide international agreements into three parts. First, the preamble, which states the overall purpose of the act . The second part embodies the substantive commitments undertaken by the parties and comprises most of the «text». The third part is the «final forms», more or less stereotyped, equivalent to the precautions that governments have been traditionally called to take to guarantee juridical regularity of the negotiation and the qualification of the plenipotentiaries, and the specifications of how the agreement shall be brought into force, how it may be terminated and, sometimes, how it may be amended. This is what is called the «protocolary» or «formal provisions»

EXHIBIT 4

AGREEMENT